Sen. Chuck Grassley, angered by an opinion issued by the Justice Department’s Office of Legal Counsel finding President Barack Obama’s recent recess appointments legal, took aim at the opinion’s author, suggesting that she won’t be confirmed by the Senate again.

The opinion, authored by Assistant Attorney General Virginia A. Seitz earlier this month, found that Congress was in recess when Obama made four recess appointments despite Congressional Republicans’ efforts to gavel in pro forma sessions over the holiday break to prevent such appointments.

“I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination,” Grassley said in a Senate floor speech Monday, according to Politico. “However, after reading this misguided and dangerous legal opinion, I’m sorry the Senate confirmed her. It’s likely to be the last confirmation she ever experiences.”

Those comments rankled some OLC attorneys from previous administrations, who said such blackball threats are dangerous.

“OLC lawyers should be free to render their honest opinion and not be threatened with adverse career consequences by either the White House or Congress,” Richard Painter, a White House ethics lawyer during the Bush administration, told Politico.

“The Senator’s name-calling is misplaced,” said Jack Goldsmith, who helmed the OLC during President George W. Bush’s administration.

President Bill Clinton’s chief OLC attorney Walter Dellinger said he was astonished by Grassley’s comments. “I can’t believe that Senator Grassley has actually read Seitz’s thoughtful and carefully reasoned opinion.  And he may not be aware that attorney’s in the administration of President George W. Bush reached the same conclusion that she reached,” Dellinger told Politico.

It did not take long for Congressional Republicans to seize on the controversial recess appointments President Barack Obama made last week.

On Friday GOP members of the Senate judiciary Committee, led by Sen. Chuck Grassley, sent a letter to Attorney General Eric Holder pressing him to disclose just what role the Department of Justice played in advising the president on the recess appointments.

As has been well reported, Obama appointed Richard Cordray as director of the Consumer Financial Protection Bureau, and three members – Sharon Block, Richard Griffin and Terence F. Flynn – to the NLRB. The Senate had previously filibustered Cordray’s nomination and stalled the NLRB nominees, allowing the Board to fall below its statutory quorum the day before Obama made the recess appointments.

Obama made the move despite efforts by lawmakers to prevent Congress from recessing by repeatedly gaveling in pro forma sessions over the holiday break.

The lawmakers’ letter stated that the appointments went against opinions issued by past attorneys general, the U.S. Supreme Court and other authorities that “clearly indicate the view that a congressional recess must be longer than three days – and perhaps at least as long as ten — in order for a recess appointment to be constitutional.  These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.”

Meanwhile, last week Rep. Bill Johnson threatened a lawsuit over the matter.

“Dodd-Frank made it very clear that to set it up it must have Senate approval,” Johnson told Fox Business’ Neil Cavuto (see it here via The Hill). “And the president cannot just arbitrarily change the rules or decide on his own the Senate’s definition of when it’s in session and when it’s not in session.”

If the goal of presidential candidate and former House Speaker Newt Gingrich was to get people talking about ideas on the federal judiciary, he succeeded! Gingrich’s plan, which would include ignoring the Supreme Court and having judges subpoenaed, arrested and hauled before Congress, has drawn much ire. Gingrich’s latest critic – fellow Republican Sen. Scott Brown, who called Gingrich’s comments “disturbing.”

“If a president and majorities in Congress could simply overturn the constitutional interpretations of the Court, and if judges could be arrested for displeasing politicians in the other two branches, we would be placing our basic rights in jeopardy,” Brown wrote in a recent Boston Globe op-ed. The rule of law would be destroyed.

Brown warned that voters may not be soon keen on Gingrich’s ideas either.

“An independent judiciary is a cornerstone of our democracy,” Brown wrote. “That Gingrich would make the courts tremble at the thought of retaliation from the president or whatever political party has the majority at the time is a very dangerous notion that threatens the founding principles of our government. If the former speaker doesn’t publicly disavow these views, the voters in New Hampshire and elsewhere will disavow his views on this issue.”

Washington is looking a bit like a schoolyard, because there is about to be a big fight over recess.

In this case, it’s a battle over the constitutional definition of recess that is poised to head to the courts. On one side, President Barack Obama, who yesterday made four controversial recess appointments despite some Republican lawmakers’ efforts to stop him by gaveling in and out of pro forma sessions over the holiday break. (It’s a move Democrats used to thwart President George W. Bush a few years back as well).

On the other side, Senate Republicans and business groups who say that Obama lacked the congressional authority to make the appointments.

The agencies in question – the Consumer Financial Protection Agency and the National Labor Relations Board – have been political flashpoints between the White House and Congress since Obama took office. Senate Republicans, angered over the agencies’ power and actions, made no bones about their willingness to block the nomination of anyone to either agency until changes were made.

All these factors make a potential court battle over the president’s recess appointment a juicy and almost certain proposition. But who will win?

That is unclear – as is the Constitution, which doesn’t define recess or specify how long one has to be for the recess appointment power to take effect. The White House said the president acted on the advice of counsel, essentially calling the pro forma sessions shams.

“The President’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” said White House Press Secretary Jay Carney yesterday. “The Constitution guarantees the President the right, provides the President the right to make appointments during Senate recesses, and the President will use that authority to make this appointment.”

Senate Minority Leader Mitch McConnell had a different view. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” McConnell said in a statement. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

The next stop in the fight will undoubtedly be a courtroom.

Addendum: This statement just landed in DC Dicta’s inbox, and reminds us why we’ll miss Rep. Barney Frank, D-Mass: “Republican’s complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building.”

Rep. Lamar Smith is amplifying his call to the White House to disclose more information about Supreme Court Justice Elena Kagan’s involvement in crafting the defense of the federal health care overhaul when she was solicitor general now that the Court is set to decide the law’s constitutionality.

“Justice Elena Kagan may have played a role in the development and defense of the president’s health-care law during her tenure as U.S. solicitor general,” the Texas Republican wrote in an op-ed in the Washington Post. “Despite claims from Obama administration officials that Kagan was not involved in the health-care discussions, e-mails released last month indicate that there may be more to the story.”

Smith is one of several Republican lawmakers and conservative interest groups who have raised concerns about Kagan’s participation in the case. The Justice Department released emails from Kagan’s tenure as solicitor general which show, according to the Obama administration, that measures were taken to shield Kagan from involvement in the defense of the law, which was challenged in federal courts as Kagan was rumored to be a candidate to replace Justice John Paul Stevens on the Court.

But Smith said some of the emails are inconsistent  with that position, and the White House should provide more information.

“The NFL wouldn’t allow a team to officiate its own game,” Smith worte. “If, as solicitor general, Kagan did advise administration officials on the constitutionality of the president’s health-care law, she should not officiate when the matter comes before the Supreme Court.”

Smith noted that both Kagan and Justice Clarence Thomas – whose wife is affiliated with groups opposing the law – are facing increasing calls by some interest groups to step aside in the case. But according to Smith, the questions raised about Kagan are much more serious.

“[C]oncerns about the job or personal views of a justice’s spouse are not the same as concerns that a justice may have been involved in a matter before it reached the high court,” Smith wrote.

Members of Congress are amplifying their calls to judicial and Justice Department officials demanding investigations of two Supreme Court justices’ alleged conflicts of interest in the health care reform case pending at the Court.

Since the Court agreed to consider the constitutionality of the federal health care reform law’s individual mandate as well as several other substantive and procedural issues related to the law, calls from members of Congress for Justices Clarence Thomas and Elena Kagan to sit out have grown louder.

Friday New York Democrat Rep. Louise Slaughter sent a letter, signed by 52 House members, to the U.S. Judicial Conference requesting a Justice Department investigation into Thomas’ initial failure to include on financial disclosures his wife’s income from organizations opposing the health care law. It’s the second time the lawmaker has asked the Conference to refer the matter to the U.S. Attorney General.

In January, Thomas amended the disclosure forms, calling the initial omission of his wife, Virginia Thomas’ income from the Heritage Foundation an oversight attributable to a “misunderstanding of the filing instructions.”

Meanwhile Senate Republicans are also pressing Attorney General Eric Holder over the health care case, seeking information on whether Kagan’s work as solicitor general creates a conflict of interest that precludes her involvement in the case.

According to Politico, Sens. Mitch McConnell, R-Ky., Jon Kyl, R-Ariz., Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, sent a letter to Holder saying the Justice Department has handled questions about Kagan in a “highly questionable manner” and demanding clarification on Kagan’s role.

“Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines … confidence [in the administration of justice] further,” the letter stated.

Emails recently released from the Justice Department reveal that, in 2010, then-Solicitor General Kagan called Senate support for the health care bill “simply amazing.”

Lawmakers from both parties are urging the U.S. Supreme Court to allow video coverage of oral arguments in the cases challenging the constitutionality of the federal health care overhaul next spring.

Tuesday, Sen. Chuck Grassley, R-Iowa, sent a letter to Chief Justice John G. Roberts and the associate justices urging them to make an exception to the rule barring cameras in the courtroom for the health care case.

“The decision in this case has the potential to reach every American,” Grassley said in the letter.  “The law is massive in size and scope.  The effect of the law, and the Court’s decision, will reverberate throughout the American economy. …A minimal number of cameras in the courtroom, which could be placed to be barely noticeable to all participants, would provide live coverage of what may be one of the most historic and important arguments of our time.  Letting the world watch would bolster public confidence in our judicial system and in the decisions of the Court.”

Yesterday, House Democratic Leader Nancy Pelosi, D-Calif., echoed Grassley’s call.

“When the Affordable Care Act is placed before the highest court in our country, all Americans will have a stake in the debate; therefore, all Americans should have access to it,” Pelosi said in a statement. “Openness and transparency are essential to the success of our democracy, and in this historic debate, we must ensure the ability of our citizens to take part.”

Earlier this year Grassley, ranking member on the Senate Judiciary Committee, introduced legislation that would give chief judges in federal trial and appellate courts the right to decide whether cameras would be allowed in court proceedings. The committee advanced the bill in April.

Perry

Term limits for Supreme Court justices? A prohibition on the Court from hearing cases involving same-sex marriage? Abolishing the 9^th Circuit altogether?

It’s election season, folks, and the candidates vying for the Republican presidential nomination are full of ideas about how to change the federal judiciary.

According to the New York Times, Texas Gov. Rick Perry likes the idea of allowing Supreme Court decisions to be overturned by a two-thirds vote of congress, as well as limiting the time justices can serve on the bench. In his book “Fed Up!,” Perry expresses a desire “to institute term limits on what are now lifetime appointments for federal judges, particularly those on the Supreme Court or the circuit courts, which have so much power.”

Gingrich

Former House Speaker Newt Gingrich, and Reps. Michelle Bachmann and Ron Paul support limiting the federal courts’ ability to hear certain kinds of cases, such as those involving abortion or same-sex marriage.

Santorum

Gingrich and former Sen. Rick Santorum support disbanding the Circuit Court of Appeals. Santorum recent said at a Tea party event: “That court is rogue. It’s a pox on the western part of our country.”

Though the candidates say the proposals are designed to put the judicial system more in line with what the Founding Fathers envisioned, most of the proposals would require a constitutional amendment to implement, the Times reports.

Most BigLaw clients would not be surprised by a $1.5 million legal tab. But when that tab is incurred by the House’s defense of the Defense of Marriage Act – and is thus charged to taxpayers – people take notice.

Rep. Honda

As did Rep. Mike Honda, who called the legal bill a “irresponsible, backdoor use of taxpayer money” according to U.S. News and World Report (HT: WSJ’s Law Blog). The California Democrat is calling for a hearing on the issue after House Republicans agreed to increase the pay cap for Bancroft partner Paul Clement’s work on the case.

As a quick recap, after the Attorney General Eric Holder announced that the Justice Department would no longer defend the law, House Speaker John Boehner announced that the House would send its own counsel to defend the law in federal court.

Clement

And not just any counsel. House GOP lawmakers tapped former U.S. Solicitor General Paul Clement – at the time a partner at King & Spalding – to defend the constitutionality of the law.

But then King & Spalding pulled out, causing Clement to abruptly resign the firm in protest and continue the defense of the law with Bancroft.

Now, U.S. News reports, the firm’s legal fees were initially capped at $500,000, but that amount was increased to $750,000. But that “cap may be raised from time to time up to, but not exceeding $1.5 million, upon written notice of the General Counsel to the Contractor.”

That does not make Honda happy. “How long are we going to let this Republican political exercise go on, and at what cost to the American tax payers?” he told U.S. News.

But Michael Steel, spokesman for House Speaker John Boehner, defended House Republicans’ actions, saying they are defending the law is because “the Justice Department chose to shirk its constitutional duty to do so.”

After oral arguments concluded at the U.S. Supreme Court yesterday, Justices Antonin Scalia and Stephen Breyer had another appearance to make – before Congress.

The justices traveled across the street from the Supreme Court building to testify before the Senate Judiciary Committee yesterday, where Scalia lamented the declining in quality of federal judges. That decline, he said, was caused by Congress’ overzealous criminal lawmaking, which created the need for so many more judges.

“Federal judges ain’t what they used to be,” Scalia told the committee, according to Mark Sherman of the Associated Press. The federal judiciary is “not as elite as it used to be.”

The justices, never afraid to publicly disagree, expressed their different views of constitutional interpretation.

“I’m hoping that the ‘living Constitution’ will die,” Scalia said at one point, according to the Huffington Post’s Mick Sacks. Breyer responded by repeating a nearly 200-year-old quote by Chief Justice John Marshall: “It is a constitution we are expounding” because it is “to be adapted to the various crises of human affairs.”"